Wiley v. Shars

• Decision Date: 09 June 1887
• Citation: 21 Neb. 712,33 N.W. 418
• Parties: WILEY v. SHARS.
• Court: Nebraska Supreme Court

21 Neb. 712

33 N.W. 418

WILEY

v.SHARS.

Supreme Court of Nebraska.

June 9, 1887.

Syllabus by the Court.

Where a jury is waived, and questions of fact tried by the court, either party may request the court to state in writing the conclusions of fact found, separately from the conclusions of law. When such request is made, it is error for the court to refuse to make such findings, and the error is not cured by assigning findings on overruling a motion for a new trial.

Where the description in a chattel mortgage was “twenty-three head of horses and mules, * * * all situated on their range on the South Loup river. * * * Above described chattels are now in their [the mortgagors'] possession, are owned by them;” the testimony showed the range in question to be situated in Buffalo county, where the mortgage was filed for record, and that the horses and mules were all those possessed by the mortgagor,-- held, a sufficient description.

Error from Buffalo county.

Calkins & Pratt, for plaintiff.

A. H. Connor and Ira D. Marston, for defendant.

MAXWELL, C. J.

In February, 1884, the Nebraska Land & Cattle Company, of Buffalo county, to secure the sum of $4,500, executed a chattel mortgage to the Buffalo County Bank, of Kearney, upon personal property described in the mortgage, as follows: “Their entire herd of cattle, consisting of bulls, cows, calves, heifers, steers, etc., 500 head, more or less; said cattle being marked in part by ear labels in left ear, by cutting off the right ear, by being branded on the hip with the letter ‘P,’ and by various other marks and brands, and some with no marks or brands; also their entire flock of sheep, 2,000 head, more or less, twenty-three head of horses and mules, together with all their tools, farm machinery, etc., consisting of threshing-machine, four self-binding harvesters, four (4) mowing machines, five wagons, a lot of harness, plows, seeders, cultivators, etc.; also a lot of carpenter and blacksmith tools; also about 500 bushels of wheat, their entire herd of swine, 400 head, more or less,--all situated on their range on the South Loup river; subject to a chattel mortgage dated February 7, 1884, to Fred O. Ellis, on cattle, to secure payment of $5,000; also one to Wiley & Perry, on Vermont Merino ewes, to secure payment of about $3,100. The above-described chattels are now in their possession, are owned by them, and free from incumbrances in all respects, except as stated.” The chattel mortgage was duly filed and recorded in the county clerk's office, February 25, 1884.

On the tenth day of March, 1884, the defendant in error, who was then sheriff of Buffalo county, levied upon certain personal property belonging to said Nebraska Land & Cattle Company, in an action pending in the district court of that county, wherein Henry H. Bowie was plaintiff, and the Nebraska Land & Cattle Company defendant, to-wit: “One bay mare named Brownie, one white mare named Babe, one brown mare named Curlie, one bay horse named Charlie, one brown horse named Bean, one dark bay horse mule named Nickel, one dark bay mare mule named Jennie, one dark bay horse mule named Sam Tilden, one sorrel mare named Nellie, and one Brown mare with four white feet named Lucy.” And also on the same day, in an action pending in said court wherein R. R. Greer was plaintiff, and the Nebraska Land & Cattle Company defendant, said defendant in error levied upon the following personal property of said company: “One sorrel horse named Dick, one light brown horse mule named Jack, one bay mare mule named Dime, one lumber wagon Jackson make, one double harness, one lumber wagon Moline make, 200 bushels of wheat in bin No. 1, 150 bushels wheat in bin No. 2, 200 bushels wheat in bin No. 3, 100 bushels wheat in bin No. 4, 50 bushels wheat in bin No. 5, 75 bushels wheat in bin No. 6, about 300 bushels of oats, and 60 bags of millet.”

It is claimed that the Greer Case has been settled, and, as there is no proof except as to the horses taken under the Bowie attachment, the property levied upon under the Greer attachment need not be further considered. The property levied upon under the Bowie attachment had previously been included in the mortgage heretofore referred to, and retaken on an order of replevin by the said Buffalo County...